Holding onto my hat

Thursday, February 11, 2016

On 22 December 2015, the High Court handed down a
judgment which clarified the legal effects of a police warning. Wham Kwok Han Jolovan v AG[1] ("Jolovan's case")
clarified that police warnings are merely expressions of opinion that the
recipients had committed an offence, but do not otherwise have any legal
effects on its recipients.

The judgment was the outcome of a Judicial Review
application by Jolovan Wham to quash (i.e. void) a police warning administered
to him. As the Court held that there was
no decision in the warning administered to Jolovan for the court to quash, the
Court dismissed Jolovan's application with costs.

On 1 February 2016, the High Court ordered Jolovan to
pay S$6,063 in costs to the Attorney-General ("AG") for his failed
court application. The amount was arrived at after discounting 20% off the
amount sought by the AG, to take into account aspects of the process by which
the warning was issued.

I am disappointed with the AG for seeking costs
against Jolovan and with the Court's decision to order Jolovan to pay S$6,063
in costs to the AG.

Before Jolovan’s Case

The practice of issuing warnings in lieu of
prosecution is not a creature of statute or regulated by legislation. Before
the decision in Jolovan's case, the implication of receiving a police warning
was mired with uncertainty.

In a seminal article by lawyer Tan Hee Joek "Be
Warned of the Stern Warning" published in the Law Gazette in 2013[2], the author said:

"...
local cases have shown that a stern warning may still be relevant in judicial
proceedings as a criminal antecedent for sentencing and for related civil
claims".

The author cited five reported cases in which the prosecution
had brought the accused’s prior warnings to the attention of the sentencing
judge. One of those cases was PP v
Tan Hiang Seng[3],
which I shall say more about. The author concluded that the five cases showed
that police warnings can have adverse effects for the recipients.

PP v Tan Hiang Seng

Of the five cases cited by Tan Hee Joek in his 2013
article, three of them were referred to by Justice Woo Bih Li, the judge in Jolovan's
case.

Of the three cases, Justice Woo found that in two of
them, the court did not actually take into account the previous warnings when sentencing
the accused. But Justice Woo agreed, and
AG conceded, that in PP v Tan Hiang Seng, the court certainly did take
into account a prior warning to the accused while considering the issue of
sentence. On this point, Justice Woo stated
in his judgment that a court is not entitled to treat a warning as an antecedent
or as an aggravating factor since it has no legal effect and is not binding on
the recipient.

I looked up the case of PP v Tan Hiang Seng.
In pressing for a custodial sentence, the prosecution in that case informed the
court that the accused had been given a stern warning for taking his mother’s
identity card without her permission. The judge in that case said in her
grounds for sentencing:

"...
the accused had taken his mother’s identity card without her permission. This
was itself an offence of theft. He was given a stern warning by the police for
this. I considered this an aggravating factor."

The judge sentenced the accused to 4 weeks'
imprisonment and a fine of $2,000.

PP v Tan Hiang Seng is a clear instance where
the court when sentencing an accused, had considered the fact that the accused
had been warned by the police to be an aggravating factor.

The AG can't run away from PP v Tan Hiang Seng.
Small wonder that in Jolovan's case, Justice
Woo noted:

“…
the AG submitted that it would be wrong for a court to take into account a
prior warning, whether as an antecedent or not, for the purpose of sentencing
and he stressed that the prosecution would not in future mention a prior
warning to a court for the purpose of enhancing a sentence."

Hence, the AG admitted that the prosecution’s
practice of informing the sentencing judge of prior warnings was wrong and that
they would stop doing that in future.

This means that the prosecution in PP v Tan Hiang
Seng (and in each of the 4 other cases cited by Tan Jee Joek) erred by
telling the court about the accused’s prior warning; and the judge in PP v
Tan Hiang Seng erred in considering that factor when sentencing the accused
in that case.

Looks like poor Mr Tan Hiang Seng's sentence was
unfairly enhanced. Now that Jolovan’s case has brought those mistakes out in
the light, is there justice for Mr Tan Hiang Seng? Would the AG take the
initiative to review Mr Tan Hiang Seng's sentencing? To right the wrong, to set
the record straight? Or is all that water under the bridge?

S$6,063 to the AG

Mr Tan Hiang Seng's case is long over, but Jolovan's
case is still live, as he has now been ordered to pay the AG the sum of S$6,063
for “failing" his court application.

As Tan Hee Joek’s article shows, before Jolovan's
case, there were concerns that police warnings could have adverse implications
for the recipients. Given the prevailing
legal opinion, we cannot fault Jolovan for being motivated to apply to Court to
quash the police warning.

Apart from uncertainty over the legal implications of
police warnings, the circumstances faced by Jolovan make the cost order imposed
him seem unfair.

Concerning Jolovan's visit to the police station on
25 March 2015, Justice Woo declared at paragraph 1 of his Judgment that
"it was not even clear whether a warning was administered". Jolovan asked for a copy of the Notice of
Warning, but his request was denied. Justice Woo also criticized the wording of
the Notice of Warning and called it "poorly drafted".

On 4 May 2015, Jolovan called the police to enquire
about the outcome of the investigations against him. The police told Jolovan
that a warning had been administered to him on 25 March 2015. When Jolovan
tried to engage them further, he was stone-walled. On 9 May 2015, Jolovan wrote
to the police and protested the issuance of a warning against him. He did not
receive a reply. On 23 May 2015, he wrote to the Attorney-General’s Chambers to
similarly protest the issuance of the warning against him. Again, he did not receive a reply. Jolovan then went ahead to file his
application for judicial review.

Let's step into Jolovan's shoes. How the police engaged Jolovan - the way he
received his warning and how he was subsequently stone-walled - left much to be
desired. In Singapore, we do not have
any independent commission or body which can bridge the gap between the police
and civilians at the receiving end of police actions. What else could someone in Jolovan's shoes
have done? Jolovan has no way to protest
the issuance to him of the warning. Jolovan's
only recourse was to seek the Court's help by applying for Judicial Review.

Unfortunately, Jolovan has now been penalised with a
cost order of S$6,063. The decision to impose the cost order sends the ominous signal
that Justice is only available to those who can afford it. Often, for someone aggrieved by a decision
made by a state agency, application to Court for Judicial Review is the only
recourse. If he wants to apply to Court
for Judicial Review, he had better make sure he has the requisite financial
means to see the application through. Jolovan's
experience shows that applying to court for help carries the risk of having to
pay costs to the AG.

Loser Pays

The legal basis for ordering costs against Jolovan is
the principle "costs follow the event". On this principle, the loser has to pay the
winner's legal costs. This principle works
well most of the time. But there is a strong case to suspend this principle
when the applicant is an aggrieved civilian seeking the Court's help against
the heavy hand of state action. Without
protection from adverse cost orders, no one will dare to complain against state
action, for fear of being slapped with cost orders in the event that the Court
upholds the decision taken by the state agency.

In Jolovan's case, the Court regarded him as having lost
his bid, and therefore he has to pay costs to the other side, which in his
case, is the AG. Had the AG decided not
to seek a cost order against Jolovan, there will be no issue of costs to
decide. For Jolovan's case, the AG in
their wisdom decided to seek costs from Jolovan. As to why the AG so decided, I do not know,
but they did.

But did Jolovan really "lose"? Jolovan's application was to quash the
warning he received. In the end, the Court decided that since police warnings are
not "decisions" but merely opinions, there was nothing to quash. The
logic being that the Court cannot quash something which cannot be quashed.

But wait - if there is nothing to quash, can it be
said that Jolovan's application to quash the police warning has failed? Jolovan’s case is not one in which the Court
upheld a decision, but one in which there was no decision to affirm or quash. But it seems that no decision to quash means
that Jolovan’s application has failed and his case is lost.

Public Interest

While Justice Woo has deemed Jolovan to have
"lost" his case, Jolovan has won for the general public a much-needed
clarification on the legal effects of police warnings. Justice Woo razed 20% off the amount sought
by AG, to take into account the AG’s various mis-steps. Justice Woo should have given Jolovan a much
higher discount to recognise the public interest elements in Jolovan's case.

The principle that the loser has to pay the winner's
legal costs should be suspended for someone in Jolovan's shoes, a civilian who has
no other avenue that to seek the court's help for his predicament. Jolovan’s case is an application for Judicial
Review by an individual who is aggrieved by a certain action taken by the
police against him. Such cases have a strong element of public interest as they
concern the interaction between individual rights and state powers.

In cases where there are strong public interest
elements, the civilian applicant should be given protection from adverse cost
orders. Such protective measures operate as safeguards against abuse of state powers. Without protection from costs, aggrieved individuals
on the receiving end of state actions, will be inhibited from bringing their
grievances to court, for fear of cost implications.

It should be noted that when an individual contends
with the state, it is a David vs Goliath scenario. The individual is handicapped by the limits
of his personal resources. The state has the armada of the AGC to avail of.

Appeal?

Jolovan is entitled to appeal against the S$6,063
cost order. But I can fully understand if
Jolovan decides not to appeal. For if Jolovan
appeals, he risks being slapped with a further cost order in the event that the
Court decides to uphold the S$6,063 costs order.

S$6,063 is already a lot of money for an individual
to fork out. To take on further exposure
to legal costs would be daunting. It
will certainly be safer for Jolovan to cough up the dough and be grateful for
the clarification given by the court that the warning he received has no legal
effect.

Jolovan’s case is a cautionary tale that Justice
comes with a price tag.

About Me

Jeannette Chong-Aruldoss is a practising lawyer who earned her law degree in the United Kingdom. She also holds a Masters Degree in Corporate & Commercial Law from the London School of Economics & Political Science and was called to the English Bar in 1986.
Jeannette is happily married and a mother of four children.
She challenged the incumbent at Mountbatten SMC in Singapore's 2011 General Elections and garnered 41.38% of the votes cast.